Divorce

Divorce or dissolution of marriage is the ending of a marriage, which can be contrasted with an annulment which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support, child custody and distribution of property.

In developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, Japan, Korea and members of the European Union. In U.S, Canada, the United Kingdom and other some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century, corresponding, more or less, with the abolition of such concepts as illegitimacy and the development of the equality of the sexes. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage as there is little remaining social stigma attached to unwed mothers. The subject of divorce as a social phenomenon is an important research topic in sociology.

Some researchers argue that divorce rate does not always reflect actual interactions among people; that is, some countries may show a low divorce rate because, in such countries, people rarely get married in the first place.

The term between divorce and remarriage varies depending on the country and the gender of the divorcee. In some countries, women need to wait longer than men before remarrying to avoid confusion about paternity. Children born after divorce may or may not be recognized as children of their father depending on the period between divorce and birth. In most common law jurisdictions there is a presumption that the child born during the marriage is the father's child, however this presumption can be overcome by identifying the putative father and bringing a paternity or affiliation proceeding. If the child was conceived before the divorce but born afterward this is the kind of grey area that jurists enjoy litigating. If a man accepts the child as his own he may be declared the father by estoppel as the parens patrie power of the court would rather the child have a male role model responsible for child support and other parental obligations rather than have the child grow up in a monoparental family.

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Table of contents
1 History of Divorce
2 Religious/Cultural Attitudes to Divorce
3 Social and Psychological Issues
4 Legal Aspects of Divorce

History of Divorce

Divorce in some jurisdictions is a relatively recent phenomenon. In Canada there was no divorce law until the 1960s. Before that the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.

Great Britain

Prior to 1670 a marriage could only be ended by the Church courts if it could be shown to have never existed in the first place, either through inability to consent (e.g. insanity) or by want of capacity to marry (e.g. precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties were impotent or frigid when the marriage was contracted. It was also possible to get a legal separation from the church known as divorce a mensa et thoro (from board and hearth). Grounds for the separation included adultery, cruelty and heresy, and it meant that any offspring were not rendered illegitimate.

In the 1530s, Henry VIII decided that he wished to divorce his first wife, Catherine of Aragon, on the grounds of affinity; he argued that, since Catherine was his brother Arthur's widow, the marriage had never really existed. Catherine claimed that her marriage to Arthur had never been properly consummated. In 1533 Thomas Cranmer was appointed Archbishop of Canterbury and he declared that Henry's marriage to Catherine was void, effectively bastardizing their daughter Mary (later Mary I). In 1536 Cranmer similarly declared Henry's marriage to Anne Boleyn void, most probably due to Henry's pervious relationship with Anne's sister Mary Boleyn. Cranmer tried to reform the Church of England's Canon law so that it allowed divorce for adultery, cruelty, and desertion, but these changes were not implemented.

Following Lord Roos's divorce on the grounds of adultery in 1670, the procedure for divorce in English law went as follows: first the husband brought an action for "criminal conversation" to establish the adultery, then he obtained a divorce a mensa et thoro from the church and then finally he petitioned the House of Lords to grant the divorce.

In 1853 a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857 the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition of their husband's adultery. In 1923 women were allowed to use the same grounds for divorce as men. In 1969, after much debate, matrimonial breakdown became grounds for divorce.

Religious/Cultural Attitudes to Divorce

Many countries in Europe, such as France prohibited divorce as it was not condoned by the Catholic church. Sometimes citizens would have to travel to other jurisdictions to obtain a divorce.

David Instone-Brewer has an extensive website at www.instone-brewer.com which discusses marriage and divorce from 1st century context.

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Social and Psychological Issues

Women are generally the financial victims of divorce due to the lack of equal pay for equal work in many countries and the fact that many women give up employment after marriage to bring up children. They are often left with the burden of looking after the children after the divorce while having to find work in low-paid jobs. Child support collection is a major problem as many fathers do not accept that they have an obligation towards their children. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for detail.

effects on children
women's shelters etc.
men's rights movements

Legal Aspects of Divorce

United States

Under the
laws of most of the states of the United States except New York a divorce is now called dissolution of marriage. This change of name was accompanied by a change from fault-based divorce, whereby one party was found guilty of one of the grounds for divorce such as adultery, abandonment, or cruel and inhuman treatment. Now, under no-fault divorce, it is simply necessary to plead that the marriage is "irretrievably broken" or that there are "irreconcilable differences."

family law probably should be linked to here to cover this material.
grounds for divorce issues (no-fault divorce etc.)
financial settlements
children's issues.
pre-nuptial agreements.

Canada

In
Canada while civil and political rights are in the jurisdiction of the provinces of Canada, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, that differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces.

Japan

In Japan, under the national laws, divorce is a simple process of submitting a declaration to the relevant government office that says both spouses agree to divorce.

You can also carry out an "online divorce". The first online divorce occurred in 1999. For more information try http://www.quickedivorce.co.uk.


See also: Alimony, child support, visitation, child custody, paternity, civil union



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